Indiana's constitution as a document of special aspirations.

• Author: Shepard, Randall T.

Difficult as it is to identify the unique characteristics of a state made up of diverse populations, those outside the State of Indiana sometimes seek to sum up our character in a single word: "hoosier." It is not always thought a compliment. Webster's defines the word not only as an Indianan, but alternately as "an awkward, unhandy, or unskilled person; an ignorant rustic" and "to loaf on or botch a job," as Senator Alfonse D'Amato once joked on the floor of the United States Senate. (1)

These definitions are too harsh, but Indiana residents sometimes do associate with quaint or rustic sensibilities. Still, most true Hoosiers live with a duality best expressed as a restless desire to hold onto our traditions and yet strive for progress. Our state constitution and its jurisprudence reflect this Ying and Yang. To understand Indiana's constitutional jurisprudence, and how the state's "spirit" shapes and is reflected in it, it is important to know something about how the present constitution and Hoosier "spirit" were shaped.

Much of Indiana's present constitution derives from its 1816 original, but significant changes occurred after a convention in 1850-51, which was driven by the failure of a massive public works scheme. (2) In 1836, twenty years after being admitted into the Union, Indiana was a state with a growing population and economy. (3) Recognizing the state's transportation infrastructure as inadequate to sustain economic growth, the Indiana legislature passed an act "to provide for a general system of Internal Improvements." (4) The Internal Improvements Act authorized the construction of major canals (including the Wabash-Erie), turnpikes, and railroads to serve as transportation arteries within the state. (5) The legislature sanctioned borrowing up to ten million dollars to finance the effort. (6)

The program failed miserably. Significant portions of individual projects were finished, but not even one was fully completed within the projected timeframe. (7) Moreover, as legislative investigations into the fiasco later revealed, mismanagement, overwork, and no small amount of corruption had rendered the program financially unsound. (8) By 1841 the state neared bankruptcy, unable to pay even the interest on the project's debt. (9)

This failure continues to have a profound effect on the people of Indiana. As the noted Indiana historian James H. Madison has argued, the frustration with the debacle "contributed generally to shaping a more conservative outlook in Indiana, a reluctance to venture actively into the public arena, a tendency of Hoosiers to prefer limited state government." (10)

Still, Indianans have never abandoned the optimism and aspiration for progress that originally brought them to the frontier. Hoosiers set high, sometimes idealistic, goals and they remain committed to achieving them through steady, practical, and reasonable efforts rather than through a single bold leap. Key elements of our constitution reveal the complexity and spirit of Indiana's people and her law.

1. WE LIKE SMALL GOVERNMENT

   Delegates to our last constitutional convention aimed to limit the size and potential invasiveness of state government, in particular, its ability to spend money and conceal legislative actions. (11) Many blamed the financial chaos caused by the Internal Improvements Act on legislative log-rolling. As Delegate Zenor said:

   I was here when the "mammoth internal improvement bill" was fought through.... That bill was got through both Houses, not upon its merits, not because a majority of the people wanted it, but by a system of "log rolling," which bore down all opposition. One member voted for the bill on condition that his constituents should have a portion of the benefit, and so on until enough votes were secured to pass the bill through both branches. (12) As one measure to stem the process of log-rolling, many delegates advocated a prohibition against deficit spending. One delegate made this passionate plea:

   Sir, the right of the Legislature of a State ... is to levy taxes for the purposes of State government, and for the purposes of repelling invasion or self-preservation, and for the faithful administration of the laws; and beyond this, they should not be permitted to go. Whenever they go beyond this, and contract debts for other purposes, they virtually appropriate the revenues and resources of those who are to come after us, and, I contend, take that which does not belong to them. Sir, their duty is to transmit to posterity a government free from incumbrances--unclogged with debts or liabilities--her revenues unappropriated--her resources untrammeled. (13) The 1851 framers thus added provisions limiting debt. Article 10, section 5 prohibits state indebtedness except "[t]o meet casual deficits in the revenue; to pay the interest on the State Debt; to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defense." (14) The state later restricted municipal debt to two percent of the assessed value of the local property. (15) Article 11, section 12 prohibits the state from holding stock in any corporation or association and from backing the credit of any person, association, or corporation. (16)

   The prohibition on holding stock flowed from the legislature's decision in 1834 to charter a State Bank that "enjoyed a virtual monopoly." (17) It authorized the state to buy half the bank's stock. (18) Although the bank was successful (notwithstanding its role in financing the Internal Improvements), it faced substantial opposition from those who favored a privately held banking system. (19) This faction prevailed in 1850 by obtaining a prohibition against the state holding stock in any bank. (20)

   Eventually, it became difficult for the state and municipalities to do business entirely on a pay-as-you-go basis. Indiana courts assented to this practical reality and countenanced devices designed to avoid the limits.

   In 1923, for example, the city of Bicknell acquired a waterworks plant by issuing bonds repayable solely from the plant's income, without pledging any other city property. (21) The Indiana Supreme Court rejected a claim of constitutional subterfuge, noting that the purchase of the water plant was being accomplished not only at a reasonable price, but more importantly without resort to taxation. (22)

   In 1958, the court condoned new state borrowing. (23) The state government was then badly in need of office space and paying nearly half a million dollars a year for rented facilities. (24) The legislature created a state office building commission to issue revenue...